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Gibson v. Astrue

March 30, 2010


The opinion of the court was delivered by: Judge Nora Barry Fischer


I. Introduction

Plaintiff, Ronald W. Gibson, Sr., ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security (the "Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 1318-1383 (the "Act"). This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 8, 10). The record has been developed at the administrative level. For the following reasons, the Court finds that the decision of the Administrative Law Judge ("ALJ") is supported by substantial evidence and, therefore, is affirmed.

II. Procedural History

Plaintiff protectively filed his application for DIB and SSI on August 16, 2006, alleging disability since June 29, 2005 due to depression, a heart attack, a bipolar condition, and a herniated disc. (Docket No. 5 at 11, 130-140).*fn1 Plaintiff's claims were initially denied on February 26, 2007.

(R. at 11, 106-18) Thereafter, Plaintiff filed a timely written request for a hearing before an ALJ on March 26, 2007. (R. at 11, 119). Plaintiff appeared and testified before the ALJ, with the assistance of legal counsel, on September 5, 2008. (R. at 11, 22-65). On November 18, 2008, the ALJ issued a decision denying Plaintiff's claims, concluding that Plaintiff was not disabled under the Act. (R. at 8-21). Plaintiff filed a timely request for review on December 19, 2008, and the Appeals Council subsequently denied Plaintiff's request on July 23, 2009, thereby making the ALJ's decision the final decision of the Commissioner. (R. at 1-3).

Having exhausted all administrative remedies, Plaintiff filed this action on September 10, 2009. (Docket No. 3). The Commissioner filed its Answer on November 13, 2009. (Docket No. 4). After both parties were granted extensions of time (Docket Nos. 8, 13), Plaintiff filed his Motion for Summary Judgment and Brief in Support on December 17, 2009 (Docket Nos. 9 and 10), and the Commissioner filed its Motion for Summary Judgment and Brief in Support on February 8, 2010. (Docket Nos. 14 and 15).

III. Standard of Review

Judicial review of the Commissioner's final decisions on disability claims is provided by statute. 42 U.S.C. §§ 405(g)*fn2 and 1383(c)(3)*fn3. Section 405(g) permits a district court to review transcripts and records upon which a determination of the Commissioner is based. Because the standards for eligibility under Title II (42 U.S.C. §§ 401-433, regarding DIB), and judicial review thereof, are virtually identical to the standards under Title XVI (42 U.S.C. §§ 1381-1383f, regarding SSI), regulations and decisions rendered under the Title II disability standard, 42 U.S.C. § 423, are pertinent and applicable in Title XVI decisions rendered under 42 U.S.C. § 1381(a). Sullivan v. Zebley , 493 U.S. 521, 525 n. 3(1990); Burns v. Barnhart , 312 F.3d 113, 119 n. 1 (3d Cir. 2002).

When reviewing a decision denying DIB and SSI, the district court's role is limited to determining whether substantial evidence exists in the record to support the ALJ's findings of fact. Burns, 312 F.3d at 118. Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate." Ventura v. Shalala , 55 F.3d 900, 901 (3d Cir. 1995)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Additionally, if the ALJ's findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. A district court cannot conduct a de novo review of the Commissioner's decision nor re-weigh evidence of record. Palmer v. Apfel , 995 F.Supp. 549, 552 (E.D. Pa. 1998). To determine whether a finding is supported by substantial evidence, however, the district court must review the record as a whole. See 5 U.S.C. §706.

To be eligible for social security benefits under the Act, a claimant must demonstrate that he cannot engage in substantial gainful activity because of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least 12 months. 42 U.S.C. §423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986).

The ALJ must utilize a five-step sequential analysis when evaluating the disability status of each claimant. 20 C.F.R. §404.1520. The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or a combination of impairments that is severe; (3) whether the medical evidence of the claimant's impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R., pt. 404 subpt. P., appx. 1; (4) whether the claimant's impairments prevent him from performing his past relevant work; and (5) if the claimant is incapable of performing his past relevant work, whether he can perform any other work which exists in the national economy. 20 C.F.R. §404.1520(a)(4); see Barnhart v. Thomas , 540 U.S. 20, 24-25 (2003).

If the claimant is determined to be unable to resume previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given plaintiffs's mental or physical limitations, age, education, and work experience, he or she is able to perform substantial gainful activity in jobs available in the national economy. Doak v. Heckler , 790 F.2d 26, 28 (3d Cir. 1986).

IV. Factual Background

A. General Background

Plaintiff was born on August 17, 1967, making him 37 years old as of the onset date of his alleged disability on June 29, 2005. (R. at 106). Plaintiff did not graduate from high school, but obtained a GED. (R. at 26). As of April 22, 2008, he weighed 134 pounds. (R. at 410). Plaintiff has seven adult children from two previous relationships. (R. at 366). Plaintiff has been married to his current wife for approximately two years. (R. at 49). They do not have any children together.

(R. at 48-49) Plaintiff's mother-in-law resides with he and his wife. (R. at 49). Since June 29, 2005, Plaintiff has worked as a temporary laborer at a mushroom mine,*fn4 part-time as a cook,*fn5 and for a glass bottling company packing glass.*fn6 (R. at 27-31).

B. Medical Background

1. Cervical and Lumbar Spine

On May 11, 2006, Dr. Edward Balestrino, D.O., a board certified family practitioner and Plaintiff's primary care physician, reported that Plaintiff had previously been in the emergency room at Clarion Hospital after attempting to break his neck by jumping from a filing cabinet while incarcerated.*fn7 (R. at 365, 482). A computed tomography ("CT")*fn8 of Plaintiff's head and neck did not indicate any neck injury. (R. at 482). Dr. Balestrino reported that Plaintiff had a "full range of motion" in his neck. ( Id. ). However, eight days later during a visit, on May 19, 2006, Plaintiff began to complain of neck pain. (R. at 481). Dr. Balestrino reported that Plaintiff had "left sided pain at about [the] C6 to T1 region with radiation into the left arm," and that Plaintiff's range of motion was "diminished in all planes." ( Id. ).

An MRI of Plaintiff's cervical spine on June 22, 2006 revealed left lateral disc protrusion at C5-6 with left neural foraminal narrowing. (R. at 315, 468, 478-79). Dr. Ramachandra Tata, M.D., a neurologist, performed an examination of Plaintiff on July 14, 2006, which showed cervical radiculopathy and a normal gait.*fn9 (R. at 468). On August 24, 2006, Dr. Balestrino examined Plaintiff and reported cervical radiculopathy with a known cervical herniated disc. (R. at 439). Dr. Balestrino then wrote to Dr. Tata in regard to Plaintiff, stating that "the majority of his symptoms are related to his herniated cervical disc." (R. 473-74).

On examination at Butler Memorial Hospital on September 25, 2006, Plaintiff was assessed to have cervical spine stenosis, despite having a normal gait and a full range of motion in his spine.

(R. at 312-14). Dr. David Evanko, M.D., a family practitioner, examined Plaintiff on October 31, 2006, and reported a mild posterior cervical muscle spasm in Plaintiff's paravertebral region. (R. at 282-85). However, Dr. Evanko also reported that Plaintiff could walk normally, and that he had a normal range of motion in his neck. (R. at 284).

A magnetic resonance imaging ("MRI")*fn10 exam of Plaintiff's spine on November 1, 2006 revealed "[m]ild central disc bulges at L4-5 and L5-S1, which impress on the anterior thecal sac but do not cause significant stenosis." (R. at 302). On January 11, 2007, Dr. Sophie Hanna, M.D., a specialist in physical medicine and rehabilitation, administered a cervical interlaminal epidural steroid injection due to Plaintiff's complaints of neck pain. (R. at 300-01). During a follow-up exam on January 24, 2007, Plaintiff indicated to Dr. Balestrino that the initial epidural steroid helped, but that it did not last more than a couple of days. (R. at 433). Dr. Balestrino noted that Plaintiff looked uncomfortable at the time of the exam. ( Id. ).

After examining Plaintiff again on April 23, 2007, Dr. Balestrino reported that although Plaintiff continued to have neck pain, a recent electromyography ("EMG")*fn11 revealed that a herniated cervical disc was not the cause of the radiculopathy in his arm. (R. at 430). On August 1, 2007, Plaintiff looked well despite a restricted range of motion in his neck. (R. at 424). Dr. Balestrino performed a back exam of Plaintiff on September 19, 2007, which indicated "some mild paraspinal muscle fullness on the T spine from about T5 to T10 and nontender." (R. at 420). Dr. Balestrino further noted that Dr. Ferraro,*fn12 a neurosurgeon who had previously examined Plaintiff, believed that Plaintiff did not require surgery. (R. at 420, 464). Dr. Balestrino saw Plaintiff again on January 30, 2008, and reported that Plaintiff "did not look terribly ill," despite having diminished range of motion in all planes of his neck. (R. at 415).

On examination by Dr. Tata on April 18, 2008, Plaintiff exhibited a steady gait and no carotid or cranial bruises in his neck. (R. at 464). However, Dr. Tata remarked that Plaintiff's previous MRI revealed a "herniated disc at C5-C6," however, Dr. Hanna's impression from that MRI did not indicate a herniated disc. (R. at 302, 464). During a neurological follow-up visit with Dr. Tata on June 20, 2008, Plaintiff complained of gait difficulty and neck pain. (R. at 463). Dr. Tata reported that Plaintiff had slightly diminished motor strength (four over five) and a steady gait. ( Id. ).

2. Multiple Sclerosis

An MRI of Plaintiff's brain on May 13, 2006 revealed "diffuse abnormal white matter signal [sic] hyperintensity on the FLAIR sequences."*fn13 (R. at 478-79). After reviewing the results of the MRI and examining Plaintiff on June 16, 2006 and July 14, 2006, Dr. Tata concluded that Plaintiff's diffuse white matter lesions were "suggestive of a demyelinating disease like multiple sclerosis" ("MS").*fn14 (R. at 468-69)(emphasis added). Dr. Tata recommended a spinal tap for July 17, 2006, but Plaintiff decided not to go forward with the procedure.*fn15 (R. at 51-52, 468). On August 24, 2006, Dr. Balestrino examined Plaintiff, and wrote to Dr. Tata in order to ...

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